- (1.)Heard learned advocate Mr. Virat G. Popat for the petitioner and learned advocate Mr. S. P. Majmudar for the respondent.
(2.)Petitioner is original plaintiff, whereas respondent is original defendant in Regular Civil Suit No. 40 of 2014 pending before the Court of learned 12th Additional Senior Civil Judge, Rajkot. The parties are referred in their capacity in original suit.
(3.)The defendant has filed an application at exhibit 29 before the Civil Court praying to get back the possession of the property, which was leased to the plaintiff with direction to the plaintiff to pay Rs.30,000/- per month to the defendant towards mense profit for unauthorized occupation and utilization of suit property and to restrain the plaintiff from using the suit property and to create any obstruction for the defendant to enter into such property. In addition to factual averments and details, such application is filed on 18.06.2014 by the defendant, when application at exhibit 5 for interim relief against defendant was dismissed, and an application at exhibit 18 to restrain the plaintiff from disturbing the possession and entrance of first floor of leased property is allowed, and when plaintiff has failed to vacate the leased property even after such order below exhibit 5 and 18.
3.1 Therefore, prima facie this is not an application for interim relief, but this is an application for mandatory relief to get back the possession and to get mense profit. Such application was dismissed by judgment and order dated 23.09.2014 by the learned 13th Additional Senior Civil Judge, Rajkot. Therefore, defendant has preferred an appeal before the District Court, Rajkot being Civil (Misc.) Appeal No. 100 of 2014. Such appeal was allowed by the impugned judgment and order dated 05.06.2015 by the learned 9th Additional District Judge, Rajkot with a direction that an order dated 23.09.2014 below exhibit 29 in Regular Civil Suit No. 40 of 2014 is quashed and set aside and respondent in that appeal i.e. plaintiff before the trial Court is directed to handover the peaceful vacant possession of the leased shop to the defendant within 30 days with further direction to pay Rs.16,500/- per month towards mense profit from the date of unauthorized possession i.e. from 01.03.2014 till possession is handed over.